NUMBER 13-20-00421-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

ALFONSO M. PRADO, M.D.,

MIGUEL A. DELEON, M.D., 

EUMING CHONG, M.D., JIE GUO, M.D., 

VALLIER C. OJADI, M.D., AND NEONATOLOGY 

CONSULTANTS OF CORPUS CHRISTI, PLLC, Appellants,

v.

FELIX MOYA AND SERENE LEE BARRAGAN, 

INDIVIDUALLY AND AS NEXT FRIENDS 

OF X.X., A MINOR, Appellees.

 

On appeal from the 105th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Tijerina

Memorandum Opinion by Justice Tijerina

Appellants Alfonso M. Prado, M.D., Miguel A. DeLeon, M.D., Euming Chong, M.D., 
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Jie Guo, M.D., Vallier C. Ojadi, M.D., and Neonatology Consultants of Corpus Christi, 

PLLC, attempted to appeal an order denying their objections to the expert report of 

William D. Rhine, M.D. This Court advised appellants that the order made the basis of the 

appeal was not an appealable order. The appellants have now filed a “First Amended 

Motion for Nonsuit Without Prejudice Pending Appealable Interlocutory Order.” They 

assert that they have filed an appropriate order with the trial court and, once that order 

has been signed, there will be an appealable interlocutory judgment. The appellants state 

that they no longer wish to pursue this current appeal, and request that we dismiss the

appeal without prejudice. 

Appellees, Felix Moya and Serena Barragan, individually and as next friends of 

X.X., a minor, have filed a response to this motion through which they assert that (1) a 

“nonsuit” is not an available remedy for appellants, (2) appellants have not followed this 

Court’s directive to correct the jurisdictional defect regarding this appeal, and (3) dismissal 

of this “improper and improvident” appeal is appropriate under the Texas Rules of 

Appellate Procedure. See TEX. R. APP. P. 42.3.

The Texas Supreme Court has repeatedly stressed that we examine the substance 

of a motion to determine the relief sought, not merely the form or title of a pleading. In re 

Interest of J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016) (per curiam); see Ryland Enter., Inc. 

v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (per curiam) (stating that “courts 

should acknowledge the substance of the relief sought despite the formal styling of the 

pleading”); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (“We look to the 

substance of a plea for relief to determine the nature of the pleading, not merely at the 
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form of title given to it.”). Accordingly, the Court, having examined and fully considered 

the “First Amended Motion for Nonsuit Without Prejudice Pending Appealable 

Interlocutory Order” and the response thereto, is of the opinion that the appellants’ motion 

should be construed as a motion to dismiss. See In re Interest of J.Z.P., 484 S.W.3d at 

925; Ryland Enter., Inc., 355 S.W.3d at 666; State Bar of Tex., 603 S.W.2d at 833. Thus, 

we are of the opinion that the motion should be granted as construed. See TEX. R. APP.

P. 42.1(a)(1) (allowing the court to “dismiss the appeal or affirm the appealed judgment 

or order unless such disposition would prevent a party from seeking relief to which it would 

otherwise be entitled”). We grant the motion to dismiss, and we dismiss the appeal. Costs 

will be taxed against the appellants. See id. R. 42.1(d) (“Absent agreement of the parties, 

the court will tax costs against the appellant.”). Having dismissed the appeal at the 

appellants’ request, no motion for rehearing will be entertained, and our mandate will 

issue forthwith.

JAIME TIJERINA

Justice

Delivered and filed on the

1st day of April, 2021.